TaxTMI 
TaxTMI 
2021 (2) TMI 587
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....he loss arising from sale of subject land is chargeable to tax under the head 'income from capital gains' and not under the head 'profit and gains from business or profession? (iii) Whether on the facts and in the circumstances of the case, the Hon'ble ITAT was right in law in holding that provisions of Section 50C are applicable to the instant case of sale of subject land by the appellant? (iv) Whether on the facts and in the circumstances of the case, the Hon'ble ITAT was right in law in not allowing business loss of Rs. 60,43,859/- for the impugned Assessment Year 2010-11? 2. Facts leading to filing of this appeal briefly stated are that the assessee is an individual and runs a proprietory concern in the name and style of M/s Madhura Developers. A survey under Section 133A of the Act was carried out in the premises of the assessee on 07.07.2010. The assessee filed the return of income on 15.10.2010 declaring a total income of Rs. 3,00,75,130/-. The case of the assessee was selected for scrutiny and notice under Section 143(2) was issued on 19.01.2011. The questionnaires under Section 142(1) of the Act were issued on several dates. In resp....
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....or both' and the expression 'being' is more like 'namely' and section 50C does not deal with interest in land but only deals with the land. 5. It is also contended that Explanation 1 to Section 2(47) of the Act uses the expression 'immovable property', whereas, Section 50C does not use the expression immovable property and therefore, the legislature has used the term 'land' instead of 'immovable property'. It is also pointed out that wherever the legislature intended, it has expanded the meaning of the land to improve rights or interest in land. It is also argued that as per Explanation (i)(b) to Section 92B(2), the transfer of ownership, or the provision of use of rights regarding land use is treated as intangible property and as per sub clause (i) to Explanation (ii) to Section 92B(2), leasehold interest is an intangible property and therefore, Section 50C is not applicable to intangible rights associated with land or building or both and is applicable to transfer of land. It is further submitted that a right to specific performance is not a land but is merely a right to sue and under the agreement for sale dated 23.12.2005, there wa....
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....ax bracket and therefore, entire exercise of seeking to disturb the year of allowability of said loss would in any case would be revenue neutral. In support of aforesaid submissions, reliance has been placed on SESHASAYEE STEELS P. LTD. V. ACIT (2020) 421 ITR 46 (SC), SURAJ LAMP & INDUSTRIES (P.) LTD. V. STATE OF HARYANA [2012] 340 ITR 1 (SC), GOBIND RAM V. GIAN CHAND, (2000) 7 SCC 548 AT PAGE 550, CIT V. GREENFIELD HOTELS & ESTATES (P.) LTD. [2016] 389 ITR 68 (BOMBAY), ITO V. CH. ATCHAIAH [1996] 218 ITR 239 (SC) & PCIT V. IND SING DEVELOPERS (P.) LTD. [2016] 239 TAXMAN 350 (KARNATAKA), ADDL. COMMISSIONER OF INCOME TAX VS. MADAN LAL AHUJA [1982] 136 ITR 640 (ALLAHABAD), 7. Learned counsel for the revenue submitted that the finding recorded with respect to the cost of acquisition and consideration at Rs. 1,400/- per square feet is a pure finding of fact recorded by the tribunal and the same is on the basis of value determined by the State Government for the purpose of stamp duty, which is permitted to be adopted under the provisions of the Act to determine the fair market value of the property. It is also argued that in the absence of any perversity, no substantial question of la....
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....nection, reliance has been placed on decisions of the Supreme Court in 'SANJEEV LAL VS. COMMISSIONER OF INCOME TAX, CHANDIGARH', 365 ITR 389 and therefore, the consideration has rightly been subjected to capital gains. It is further submitted that assessee is not entitled to produce the documents before this court without appropriate application which is supported by an affidavit. 9. By way of rejoinder reply, learned counsel for the assessee submitted that this court may record a finding with regard to applicability of Section 50C in the fact situation of the case and may remit the matter to the tribunal to decide the issues arising out of substantial questions of law Nos.1 and 2. 10. We have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, the assessee has entered into an unregistered agreement viz., an agreement for sale on 23.12.2005 with M/s Namaste Exports Ltd. For purchase of land measuring 3639.60 square meters for a consideration of Rs. 4.25 Crores. Before proceeding further, it is apposite to take note of relevant extract of Section 2(47) as well as Section 50C of the Act, which read as under: ....